Fields v. Daisy Gold Mining Co.

• Decision Date: 15 August 1903
• Docket Number: 1364
• Citation: 73 P. 521,26 Utah 373
• Court: Utah Supreme Court
• Parties: SEWARD H. FIELDS and Others, Appellants, Respondents, v. THE DAISY GOLD MINING COMPANY, a Corporation, and Others, Respondents, and A. T. MOON, Receiver, Respondent and Cross-Appellant. THE SALT LAKE HARDWARE COMPANY, a Corporation, Respondent, v. THE DAISY GOLD MINING COMPANY, a Corporation, and Others, Respondents, and A. T. MOON, Receiver, Respondent and Cross-Appellant

73 P. 521

26 Utah 373

SEWARD H. FIELDS and Others, Appellants, Respondents, v. THE DAISY GOLD MINING COMPANY, a Corporation, and Others, Respondents, and A. T. MOON, Receiver, Respondent and Cross-Appellant. THE SALT LAKE HARDWARE COMPANY, a Corporation, Respondent, v. THE DAISY GOLD MINING COMPANY, a Corporation, and Others, Respondents, and A. T. MOON, Receiver, Respondent and Cross-Appellant

No. 1364

Supreme Court of Utah

August 15, 1903

Appeal from the Third District Court, Tooele County. --Hon. A. N Cherry, Judge.

Action by Seward H. Fields, trustee, and another to foreclose a trust deed executed by the Daisy Gold Mining Company. The Salt Lake Hardware Company also commenced a suit against the mining company to foreclose its mechanic's lien. The hardware company appeared in the action commenced by Fields and answered and set forth its claim by way of cross-complaint. The two cases were consolidated, tried and appealed together (see 25 Utah 76). The said A. T. Moon, as receiver, also appealed from the decree but his appeal was not perfected at the time the other was determined. The only questions now involved are those raised by the appeal of the receiver.

AFFIRMED.

C. S Patterson, Esq., and Geo. W. Moyer, Esq., for cross-appellant.

Messrs Pierce, Critchlow & Barrette for respondent Fields.

Messrs. Frick & Edwards, Charles C. Dey, Esq., W. H. Bramel, Esq., C. W. L. Stevens, Esq., for respondent Salt Lake Hardware Company.

BASKIN C. J. BARTCH, J., McCARTY, J., concurring in the judgment.

OPINION

BASKIN, C. J.

--On July 28, 1900, Seward H. Fields, as trustee, filed his complaint in the district court of Tooele county, Utah to foreclose a certain trust deed given by the Daisy Gold Mining Company, a corporation of the State of Nebraska, and in which action numerous lienholders were made parties, and A. T. Moon, as the receiver of said Daisy Company, was also made a party defendant. On August 28, 1900, after the foregoing complaint was filed by Fields, the Salt Lake Hardware Company, a corporation, which was not made a party in the Fields complaint, commenced an independent action against said Daisy Gold Mining Company to foreclose a mechanic's lien upon the property of said Daisy Company in Tooele county, Utah. The foregoing actions were consolidated and tried together in Tooele county, Utah. The trust deed conveyed to the said Fields, as trustee, certain mining claims situate in Tooele county, together with a mill for the treatment of ore, and other improvements and appurtenances belonging to said claims, to secure the payment of certain promissory notes, amounting in the aggregate to the sum of $ 25,000, and payable to the several owners and holders thereof at Salt Lake City, in the county of Salt Lake. Upon the trial of said actions a decree was entered directing that the property aforesaid be sold, and the proceeds thereof applied in satisfaction of certain liens and the claims of the beneficiaries under the trust deed, in the order therein specified. As between the Salt Lake Hardware Company and said trustee, priority of payment was awarded to the former. From that part of the decree an appeal was taken, and has been determined. See 25 Utah 76, 69 P. 528. The said A. T. Moon, as receiver, took a separate appeal from the decree; but as that appeal was not perfected at the time the other one was passed upon, and is still pending, the only questions now involved are those raised by the receiver.

1. His first contention is that, as the notes secured by the trust deed were payable in Salt Lake county, the cause of action arose in Salt Lake county, and that under article 8, section 5, of the Constitution, in which it is provided that "all civil and criminal business arising in any county must be tried in such county, unless a change of venue be taken, in such cases as may be provided by law," the court had no jurisdiction of the subject matter of the actions in question, and therefore the decree of foreclosure rendered by the court in Tooele county is void. The question of jurisdiction is raised for the first time in this court. It is evident from the context of the aforesaid section of the Constitution that the word "business" was used in the sense of "causes of action." White v. Rio Grande Wes. Ry. Co., 25 Utah 346, 71 P. 593; Konold v. Rio Grande Wes. Ry. Co., 16 Utah 151, 155, 51 P. 256; Deseret Irr. Co. v. McIntyre, 16 Utah 398, 403, 52 P. 628; Mosby v. Gisborn, 17 Utah 257, 275, 54 P. 121; Condon v. Leipsiger 17 Utah 498, 501, 55 P. 82. While a cause of action may arise from the violation of an obligation arising from business, under no legal or general definition of the word is business an element of a cause of action. An obligation is frequently created by business arising at different times in several counties, but the same cause of action, unless it is transitory, cannot arise at different periods of time, and, as a general rule, cannot arise in different jurisdictions. The constituent elements of a cause of action consist of either the violation of a legal obligation, or the omission to perform a duty imposed by law, or the commission of a wrong by a person which results in injury to another, and of either the actual damage, or the damage implied by law, caused thereby. Mr. Justice Cooley, in Post v. Campau, 42 Mich. 90, 3 N.W. 272, said: "The elements of a cause of action are, first, a breach of duty owing by one person to another; and, second, a damage resulting to the other from the breach." In Foot v. Edwards, 3 Blatchf. 310, 9 F. Cas. 358, F. Cas. No. 4,908, Mr. Justice Ingersoll said: "The commission or omission of an act by the defendant, and damage to the plaintiff in consequence thereof, must unite, to give a good cause of action. No one of these facts by itself is a cause of action against the defendant." In City of North Vernon v. Voegler, 103 Ind. 314, 2 N.E. 821, it is said: "In every valid cause of action two elements must be present--the injury and the damage. The one is the legal wrong which is to be redressed; the other, the scale or measure of the recovery." Hodsoll v. Stallebrass, 11 Adol. & Ellis 310; Roberts v. Read, 16 East 215; Warner v. Bacon, 8 Gray 405, 69 Am. Dec. 253; White v. Rio Grande Wes. Ry. Co., 25 Utah 346, 71 P. 593. Damage, however, is not necessarily an element of an equitable cause of action, for in many cases the equity courts restrain threatened wrongs to prevent the infliction of damages. There are other cases in equity in which the matter of damage is not involved. It follows that, in order to render the provisions of the Constitution in question intelligible, the term "causes of action," as held in White v. Rio Grande Wes. Ry. Co., supra, must, in construing said section, be substituted for the word "business." When so substituted the provision in question is simply a declaration of the common law on the subject of venue. "In common-law practice the venue is that part of the declaration in an action which designates the county in which the action is to be tried." Rapalje, Law Dict. "Venue" is defined in Anderson's Law Dictionary as follows: "Locality; neighborhood; place of trial; county. The county where a cause is to be tried." Under the common-law the place of trial is the county or jurisdiction in which the cause of action arises, and when the venue is not properly laid, and that fact is disclosed by the declaration, the action may be dismissed on demurrer, and if that fact is not so disclosed the defendant may plead it in abatement. Transitory actions, however, at common law, could be instituted in any jurisdiction in which the defendant was served with process, on the principle that "as soon as a person becomes liable in such action to another either by reason of a tort or contract the liability attaches to the person, and follows him wherever he goes." 22 Am. and Eng. Ency. of Law, 784. Under most of the modern codes of civil procedure the practice in respect to the venue is the same as at common law. Maxwell, Code Pl., p. 358. This brings us to the consideration of whether the venue in the case at bar was properly laid in Tooele county. In passing upon this question it is necessary to determine whether the district court of the Third Judicial District had jurisdiction of the subject-matter of said actions, and whether the causes of action on which they are based arose in Tooele county. The judicial power of the State is vested by article 8, section 1, of the Constitution, "in the Senate, sitting as a court of impeachment, in a Supreme Court, in district courts, in justices of the peace, and in such other courts inferior to the Supreme Court, as may be established by law." By the seventh section of said article the district courts are vested with original jurisdiction in all matters civil and criminal not excepted in the Constitution and not prohibited by law, and justices of the peace, by section 8, with such jurisdiction as had been previously provided by law. Justices of the peace do not possess jurisdiction in actions of foreclosure, nor are such actions within the exceptions of the Constitution, nor are the district courts prohibited by law from exercising jurisdiction therein. ...